In re Metcalfe — 58 N.Y. St. Rep. 518

Majority

p. 518

In the Matter of George Metcalfe, as Executor, etc.

(Surrogate’s Court, Westchester County,

Filed January, 1894.)

Headnote

1. Surrogate—Jurisdiction.

A surrogate has jurisdiction to construe a will on an accounting.

2. Will—Construction.

Where a will gives the use of property to the husband, and says that, on his death, “I wish my property to be equally divided between my nephews and nieces,” he takes a life estate only, with remainder to the nephews and nieces.

Application to compel an accounting by an executor.

Robert H. M. Dawborn, an heir of the deceased, claiming to be interested in her estate under her last will and testament, cited said executor to show cause why be should not render an account. On the return day of the citation he claimed to show cause, which was to the effect that all of the estate,except some specific bequests which the legatees had received, belonged to him by virtue of the will, under its first clause, which reads as follows: “After all my lawful debts are paid, I give to my husband, George Metcalfe, the use of all my property, both real and1 personal. At the death of my husband, George Metcalfe, I wish my property to be equally divided between my nephews and nieces,” naming them, among whom was the petitioner. It further appears that the property of the deceased consisted of a farm of land, a number of

p. 519

shares of railroad stock, and an indebtedness of $1000 due to her. Objection is made on behalf of the petitioner to the effect that this court has no power" to construe the will.

Charles «7 Banks, for petitioner; D. J, M. O' Callaghan, for executor.

— It is well settled that the surrogate has jurisdiction to construe a will on accounting, and this is such a proceeding.

The will gives the use of all the property, real and personal, to the husband, in effect, for life. It does not, either in terms or by fair inference, give him the property, but only its use. It does not “leave” it to him to be enjoyed by him for his sole use and benefit, as in the case of Campbell v. Beaumont, 91 N. Y. 464 , cited by the executor’s counsel, nor can we anywhere gather from the will any such intention. It cannot be pretended that the title to the farm would pass under the provisions for its use, and the word embraces and is applied to both kinds of property. If it will not pass the title to the farm, how can it be held that it does so as to the personalty? Can we so construe it as to give it a double meaning? Evidently it was used in a single and ordinary sense. 'The word “wish,” as used in the following sentence, making a final disposition after the death of the husband, is sometimes construed as a mere precatory word, and sometimes as equivalent to the words “will” or “direct” Here it appears to me to have been employed in the sense of the latter word. It is accordingly determined that the executor has a life estate only, with remainder to the nephew and nieces. This appears to have been the intention of the testatrix as gathered from the will, which was drawn by herself.

The right to use the implements and machinery on the farm in conducting farming operations by the husband is a question for subsequent consideration.

It must, therefore, be held that sufficient cause has not been shown why the executor should not file his account, and the further order provided by statute in such case may now be entered.

Ordered accordingly.

Cases cited

Campbell v. Beaumont 91 N. Y. 464 N.Y. 1883-03-06 p. 519